'Don't ask, don't tell' federal court case set to start
As the Pentagon continues studying the impact of repealing its "don't ask, don't tell" policy, a federal court case starting Tuesday in California will consider whether the policy banning gays and lesbians from openly serving in uniform is constitutional.
A six-year legal fight by the Log Cabin Republicans culminates today in Riverside, Calif., where the group's lawyers will argue that the the gay ban violates due process and free speech protections. The group has about 19,000 members and supports "fairness, freedom and equality for gay and lesbian Americans," according to its Web site.
"We're trying to have the whole statute thrown out," said lead attorney Dan Woods. Over the course of the two week trial, Woods plans to call several expert witnesses and at least five former service members, who will tell the court how they were discharged under the policy for reasons unrelated to their performance. At least one heterosexual service member also is expected to testify about how working with gay men made no difference in his military service, Woods said.
The judge in the case decided last week that the case could proceed despite government objections. Justice Department lawyers will argue that LCR has failed to identify any of its members personally harmed by the gay ban and that the group's claims of unconstitutionality fail under court precedent, according to government court briefs.
But the case once again puts government lawyers in the awkward position of defending a policy impeding gay rights that the Obama administration hopes to one day end.
"The Justice Department is defending the statute, as it traditionally does when acts of Congress are challenged," said spokeswoman Tracy Schmaler. "The president believes and has repeatedly affirmed that 'don't ask, don't tell' is a bad policy that harms our national security and undermines our military effectiveness, because it requires the discharge of brave Americans who wish to serve this country honorably. The president and his administration are working with the military leadership and Congress to repeal this law."
Tuesday's trial comes only days after a Boston federal judge struck down a major part of the Defense of Marriage Act as it applies to Massachusetts. Justice Department lawyers are expected to appeal the ruling, despite President Obama's stated opposition to the 1996 law.
The Pentagon last week defended its ongoing study of "don't ask, don't tell" as copies of a questionnaire sent to about 400,000 active duty and reserve troops leaked to the media. Defense Secretary Robert Gates has assured gay and lesbian troops that the survey will protect their privacy, and says the study is necessary to help the Pentagon complete its review, which is due to Obama by Dec. 1.
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